Maybe it's the start of something good. The New York State Bar Association is calling on courts to monitor lawyers' advertising. A committee of Connecticut lawyers is proposing constraints on ads that, as one judge delicately put it, "exceed the boundaries of appropriate content." And the majority leader of the West Virginia Senate is introducing a bill to control lawyer advertising that is "almost shameful."
Almost? Try to find a yellow pages anywhere in the country that isn't plastered with full-page lawyer ads, inside and out. "Master of the Malpractice Universe" proclaims one, playing to the lottery mentality of prospective clients: "Victim Awarded $7.39 Million;" "D.C. Jury Awards $10 Million in Malpractice Suit."
TV is filled with glitzy lawyer commercials targeting every ailment from asbestosis to hammer toes. Just call 1-800-blah-blah and we'll sue the pants off of 'em. In 1996, lawyers spent about $155 million on TV ads. This year they'll spend an estimated $500 million.
But advertising is just a chip in the mosaic of entrepreneurial excess by the plaintiff's bar. The Manhattan Institute gives it a name: "Trial Lawyers, Inc." — which is also the title of a periodic report the institute publishes.
Lacking only centralized management, TLI operates as a giant commercial corporation. It continually sprouts new "product" lines of litigation: tobacco, fast food, even foul balls. Novel legal theories to support these ventures are ginned up in TLI's Research and Development wing, also known as law school faculty.
Marketing consultants offer lawyers strategies that include protected "territories." One ad agency promises "Area Exclusivity: Our unique mapping system allows you to own exclusive rights to all calls from the area(s) you purchase. You will receive all calls in that area &mdash no call rotation, no call sharing."
TLI has also perfected and sullied techniques of mass production. In asbestos and silica litigation, hundreds of thousands of clients are identified through mass X-ray screenings run out of tractor-trailer rigs. Films are reviewed by B-readers, physicians certified by the National Institute for Occupational Safety and Health to read X-rays.
The B-reader program has become a scandal unto itself. Out of more than 690,000 claims received by the Manville Trust, established to compensate victims of asbestos exposure, more than 200,000 had been read by just 15 physicians. Last year, Judge Janis Graham Jack, a federal judge in Corpus Christi, Texas, uncovered similar mass-production abuses in silica cases referred to her court. A dozen physicians had "diagnosed" silicosis in nearly 10,000 clients — without ever seeing a patient or taking a medical history. When questioned under oath, the physicians recanted.
Trial lawyers like to portray themselves as Davids siding with the little guy against corporate Goliaths. But William E. Simon Jr. got it right in a speech last year: "Our system of civil justice ... has been hijacked by a relatively small group of lawyers who have gamed the system for their own gain, often at the expense of their own clients."
Constraining their advertising would be a good start toward reining in the hijackers. But it's only a start.